Since recreational marijuana was legalized in Massachusetts, divorce and family law attorneys have taken a wait and see approach to determining how the use and possession of now-legal marijuana will affect parental rights. Important questions remain about how legal marijuana use can and will impact divorce, child custody and DCF cases. Although the new law purports to offer some protections for parents and caregivers who use marijuana recreationally, social stigma continues to surround marijuana use – particularly among an older generation of judges determining custody issues – and legitimate unresolved questions remain about how recreational marijuana use affects the care, attention and behavior of parents.

Recreational Marijuana Law Limits Impact of Use in Child Custody Cases

During the 2016 election, Massachusetts voters approved Question 4 by a 7-point margin, legalizing the recreational use of marijuana starting in July of 2018. The resulting law is broad and complex, including provisions regulating and affecting every aspect of marijuana cultivation, sale, possession and use.

One provision of the law that specifically focuses on child custody and DCF cases is M.G.L. c. 94G s. 7(d)which states as follows:

“[A]bsent clear, convincing and articulable evidence that the person's actions related to marijuana have created an unreasonable danger to the safety of a minor child, neither the presence of cannabinoid components or metabolites in a person's bodily fluids nor conduct permitted under this chapter related to the possession, consumption, transfer, cultivation, manufacture or sale of marijuana, marijuana products or marijuana accessories by a person charged with the well-being of a child shall form the sole or primary basis for substantiation, service plans, removal or termination or for denial of custody, visitation or any other parental right or responsibility.” [Emphasis added.]

In theory, Section 7(d) prohibits judges from citing a parent’s recreational marijuana use as sole reason for reducing a parent’s rights surrounding their child in terms of visitation and child custody in the Probate and Family Court, and DCF investigations for abuse or neglect, or care and protection actions in the Juvenile Court – unless there is clear evidence that the marijuana poses a danger to their children.

Under the state law, marijuana use cannot be a judge’s sole reason for lessening a parent’s rights to his or her child barring clear and convincing evidence. Although the statute appears to provide strong protection for marijuana-using parents on its face, Section 7(d) does not prohibit judges or DCF from considering marijuana use completely. Instead, it prevents these fact finders from citing a parent’s marijuana use as the sole or primary basis for negatively impacting parenting time. Thus, a parent who engages in problematic behavior while using marijuana may see their parental rights limited based on their behavior, while parents whose marijuana use does not appear to negatively impact their behavior seem to be offered stronger protections by the statute.

Preventing Stigmatization for Pot-Using Parents is One Goal of MA Law

As drafted, it seems likely that the underlying goal of Section 7(d) was to prevent a judge from relying solely on the historic social stigma surrounding marijuana use in custody decision.

Legalization does not automatically remove the preconceived notions around marijuana use, which users are likely to continue experiencing in the workplace, housing, police interactions and, yes, in child custody and DCF proceedings.

The legal standard articulated under Section 7(d) – requiring “clear, convincing and articulable evidence” to deviate from this rule – is relatively rare in probate and family law. The clear and convincing standard applies to Complaints for Contempt in the Probate and Family Court; however, most child custody determinations are based on the best interest of the child, which requires only proof by a preponderance of the evidence. Thus, 7(d) presents a substantial evidentiary hurdle that seeks to curtail parental rights based solely on a parent’s use of marijuana.

But How Will Judges React to Marijuana Use by Parents?

The reality is that trial judges in the Probate and Family Court are given wide latitude and discretion to determine the facts of a given case and weigh the credibility of the parties involved. The “best interest of the child” standard, which is used by judges to determine issues relating to child care and custody, is broad and flexible, and Massachusetts Probate and Family Court judge’s rulings are rarely reversed on appeal for child custody decisions. Indeed, just getting a Probate & Family Court judge to change a temporary order for child custody can be a slow and expensive process.

Section 7(d) certainly appears to provide some protection for parents whose only problematic behavior – from the judge’s perspective – is the parent’s marijuana use. Indeed, when marijuana possession was illegal, a positive drug test for marijuana would frequently harm a parent’s rights. For many judges, the mere fact that a parent was using an illegal drug was enough to impact custody, regardless of whether the parent’s marijuana use impacted his or her behavior in any measurable way.

Following the decriminalization of recreational marijuana in Massachusetts in 2008, and the legalization of medical marijuana in 2012, many judges began to relax their views regarding parents whose urine screens or hair follicle tests resulted in a positive marijuana test. Given that marijuana is frequently detectable in a user’s urine up to 21 days after his or her last use, both judges and DCF started to acknowledge after 2008 that evidence of marijuana use alone should not be a basis for draconian decisions relating to parental rights.

The full legalization of marijuana in Massachusetts is likely to continue the pendulum swing away from penalizing parents based solely on positive urine or hair follicle screen for marijuana. That said, judges and DCF are likely to continue to scrutinize parental conduct relating to marijuana, with a skeptical eye towards a parent’s use and handling of marijuana near and around children.

Some Problematic Uses of Marijuana That Could Impact Parental Rights

Although Section 7(d) offers protection for parents who smoke, the impact of marijuana use by parents is poorly studied, and judges and DCF alike are likely to continue to scrutinize the behavior of marijuana-using parents. Potential areas of concern could include:

Driving while intoxicated on marijuana

Exposing children to second hand marijuana smoke

Failing to secure marijuana or cannabis edibles around children

Using marijuana during or just before parenting time

Evidence that marijuana use negatively impacted a parent’s actions in an emergency

Erratic behavior following marijuana use

Chronic or extreme use of marijuana

Spending exorbitant money to purchase marijuana

Very frequent or voluminous marijuana purchases

Evidence that a marijuana-using parent is attempting to conceal marijuana use or purchases

Marijuana use by individuals with substance abuse histories

Marijuana use in violation of existing court orders

Although marijuana was decriminalized in Massachusetts in 2008, only now is marijuana available for purchase at retail shops. One effect of the legality of marijuana sales is that marijuana-using parents can now be asked to preserve receipts and electronic records documenting their marijuana purchases. As with alcohol, a parent whose bank or credit card statements indicate very frequent and/or voluminous marijuana purchases could face allegations of addiction, chronic use or intoxication in the presence of the children.

How Will Section 7(d) Impact Existing Custody Orders That Prohibit Parents from Using Marijuana?

At this stage, it is not clear what kind of protection Section 7(g) offers to parents who are subject to existing child custody orders prohibiting that parent from using marijuana. The reality is that orders for custody frequently include restrictions on non-criminal behavior. For example, a parent with a history of alcoholism may be ordered to refrain from consuming alcohol prior to his or her parenting time – even though alcohol consumption is legal.

In general, a parent who is prohibited from using marijuana by an existing order should probably assume that the order remains in effect, despite Section 7(g). However, such parents may be in a position to cite Section 7(g) in a future motion or Complaint for Modification as grounds for eliminating or changing the order.

For parents seeking to change existing orders prohibiting marijuana use, a major question is likely to center around why the order was entered in the first place. For example, if the order resulted from the parent’s history of serious substance abuse, such that the use of marijuana could represent a significant loss of sobriety, a judge may be reluctant to change the order, despite Section 7(g). In contrast, if two parents entered a detailed parenting agreement that included boilerplate prohibiting marijuana use that was entered prior to legalization, a parent seeking to modify the order could find significant support under Section 7(g).

Of course, as noted above, the marijuana use continues to carry a significant social stigma. It is difficult to say how a judge might view a parent who seeks to modify a judgement based on his or her desire to use recreational marijuana.

Despite Both Being Legal, Marijuana is Different from Alcohol in Important Ways

While the science is quite clear that modest recreational marijuana use poses little or no medical risk to the parent using it, there is much less information on whether people who are using marijuana are in a position to act as responsible parents. Feeding, clothing, and caring for the daily and expected needs of a child are one thing, but responding quickly and appropriately to the kinds of emergencies that are common for a parent to face is quite another.

Because alcohol has been used legally for so long, society has developed a large number of formal and informal measurements for what qualifies as intoxication, addiction and blatantly unreasonable use. We all know, for example, that an individual who consumes ten vodka drinks in a bar over a few hours is likely to be quite intoxicated. Common sense tells us that a parent who is consuming two bottles of wine per night may have a drinking problem. Most of us have a passing familiarity with breathalyzer test results. Even individuals who abstain from alcohol generally have a working understanding how alcohol intoxication impacts others.

In short, Probate and Family Court judges often do not need an expert witness to tell them that a parent has a problem with alcohol. Meanwhile, for illegal drugs like cocaine, judges often feel comfortable taking a zero-tolerance approach, where any amount of consumption is a problem for a parent. However, marijuana is a different story.

How much marijuana does an individual need to consume to be highly inebriated/intoxicated? Does smoking/ingesting $50 worth of marijuana products in one single result in acute intoxication? What about $200 worth of products over three days? What does acute marijuana intoxication even look like compared to alcohol intoxication? Is a parent who uses marijuana in the evening after work comparable to a parent who drinks a glass a wine at the end of the day? Is a parent who smokes marijuana every day capable of reacting effectively to emergencies or caring for a child’s basis needs? Is it a problem for a parent to smoke marijuana on their back-porch while their children can see them from inside? Is a parent who acts “goofy” around his or her kids after smoking marijuana acting irresponsibly? How are we supposed to test marijuana intoxication when the drug stays in the bloodstream for 21 days after use – i.e. long after any intoxicating effects have worn off?

How Cautious Do Parents Need to be About Their Marijuana Use?

In many ways, all we really know about marijuana is that its use does not appear to pose immediate physical danger for the recreational user. There is almost no consensus – scientific, social, legal or otherwise – about what it really means to be “high” on marijuana, how much use is too much, and how children react to parents who use marijuana? For example, what is the right answer to this basic question: should parents conceal their marijuana use from their children, or can they use marijuana openly, like wine or beer, so long as the children are not exposed to second-hand smoke?

Over time, it seems likely that formal and informal measures will begin to form that help parents, attorneys, judges, police, DCF investigators and others better evaluate what constitutes problematic marijuana use by parents. However, for the foreseeable future, the lack of consensus on so many basic questions means that parents should act with real caution when exercising their legal right to consume marijuana.

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